VI   MONITORING COMPLIANCE

6.1  Overview

Observers are directly involved in the surveillance aspects of the fisheries. Half of their time at sea is devoted to ensuring that the rules which govern both foreign and domestic fishing are followed. Canadian observers have been trained to monitor compliance in twenty-eight specific areas. These can ordered into the following six categories:

1. logbook and catch & effort reports
2. by-catch calculations
3. fishing gear
4. closed areas
5. safety
6. miscellaneous

Although much of the regulatory legislation has primarily local significance, other aspects have a more universal application and it is these areas that will be emphasized.

The observer must be alert to the vessel's activities at all times and be prepared to document any infraction. While he has no authority to lay charges, take statements or apprehend violators, the basis of his testimony has been and and continues to be grounds for arrest, closure of a fishery or removal of the culprit vessel from the fishery. As such, it is important that the observer be well trained in his ability to detect violations. He must have comprehensive training in fisheries regulations, be able to fully document any noted infractions, have a thorough understanding of fishing technology and operations, be conversant in the basics of navigation and be able to present himself as a credible witness in a court of law.

The Canadian Observer Programs devote most of their effort to two types of vessels, foreign and domestic, which combined, account for the major portion of all catches. The first is the large domestic wetfish trawler (greater than 30m), which processes only to the level of gutting and then stores the fish on ice. Trips on these vessels average ten days. When the fish is landed it is weighed, by species, and a purchase slip denoting all weights is issued. The crew's payment (share) is computed from this and a copy goes to the Department of Fisheries for quota monitoring purposes. Maintaining control over allocations works well because of the limited number of vessels (150 in eastern Canada), the well established landing sites, and the presence of shore-based enforcement officers who verify purchase slips with logbook records. When the observer is on board he is to report on logbook recording practices, by-catch levels, mesh size, avoidance of closed areas, and obtain unculled length measurements for all major species to augment shore based samplingprograms. Significant discrepancies between observer estimates of removals and what is reported via logbooks and purchase slips are investigated, and action is taken where warranted.

While the observer performs the same basic tasks on foreign as on domestic vessels, the main difference is that the catch is not landed and weighed, but processed on board, frozen, packaged and taken out of the Canadian zone. In this case the observer becomes the key monitor in determining the accuracy of what is reported officially by the foreign master to Canadian authorities. Within the legal framework of fisheries legislation, the burden of responsibility for providing accurate reports must remain with the captain. The observer's role is to monitor this process and alert officials to any suspected misreporting. The observer's estimates remain confidential, but by continuously monitoring what is recorded in the logbooks he is acting as a catalyst to ensure that legitimate records are being maintained.

6.2  Catch and Effort Reports

Foreign access to stocks within the Canadian 200 mile zone is regulated through a licencing system which controls the number of permissable days on ground and through a quota system which restricts the total removals for the licensed species. In order for Canada to effectively manage these stocks it is necessary for each foreign nation to submit “Catch and Effort Reports” (C&E) while fishing within the 200 mile jurisdiction.

Section 11(1) of the Canadian “Coastal Fisheries Protection Regulations” states that:

“…the master of the vessel shall cause reports to be made of the position of the vessel and of its current activities including, where applicable, its catch statistics and any transhipments or other dispositions of its catch, at such times, to such persons and by such means as are set out in the licence.”

The licence defines what is to be reported and how it is to be sent:

“….Each report shall cover the period 0001 GMT Monday to 2400 GMT Sunday. Each report shall be transmitted to the national representative via the most convenient Canadian Coastguard Radio Station no later than 2400 GMT Monday and the representative will deliver the reports to the Department of Fisheries no later than 2000 GMT Tuesday. The information for the Catch and Effort will be as follows:

All species that exceed 100 kg. are to be reported in the vessel's weekly catch and effort report.”

The important point to note here is that the master of every vessel is responsible for reporting on a weekly basis his vessel's daily activities and catch, and that it is on the basis of these reports that the Department of Fisheries is able to manage individual fisheries. The accuracy and ultimate viability of this approach would be doubtful were it not administered in conjunction with well defined logbook requirements and an effective enforcement plan that includes both fishery officers and observers.

6.3  Logbook Requirements

The masters of foreign vessels are required to maintain three (3) logbooks issued by the Department of Fisheries. They are:

(1) The International Fishing Log

(2) The Production Log

(3) The Transhipment Log

The master of the vessel is responsible for the accuracy of the data recorded in these logbooks and he must certify it daily by his signature. The essential purpose behind having a triad of logbooks is to enable the department to accurately monitor stock removals by foreign vessels. Each logbook serves an integral function in piecing together the overall picture of what was caught. The International Fishing Logbook contains the information that is reported via the Catch and Effort Report.

6.3.1  International Fishing Logbook (fig.28)

Sections 11(d)vi and 11(g) of the Canadian “Coastal Fisheries Protection Regulations” define the regulatory powers that mandate the International Fishing logbook requirements.

“…the master of the vessel shall cause written records to be maintained accurately on a daily basis of the fishing effort and catch of the vessel and of any transhipments or other dispositions of the catch by quantities, species, size and weight including any discards of fish.”

The Fishing Logbook is the source document for the quota monitoring system. It outlines on a daily basis the vessels activities, the catch by and species, and what was kept, discarded or processed. This comprehensive documentation forms not only the basis of the C&E report but allows management to compare to compare catch reports from vessels with and without observers, by-catch levels and fleet movement. This is a legal document signed by the master. Its accuracy depends on the captain's deligence in meeting regulatory requirements, and the level of enforcement and monitoring that is applied to the fishery.

INTERNATIONAL FISHING LOG

F OO43–39

fig. 30

6.3.2  Completion Instructions (Fishing Log)

The following instructions are provided with the fishing logbooks to facilitate their completion.

1. All entries must be made in ink.
2. It is forbidden to erase or to alter entries in this logbook. In case of an incorrect entry, a line is to be drawn through the entire entry and it is to be rewritten.
3. The Master of the vessel is responsible for the accuracy of the data recorded in this logbook and must certify it daily by his signature in the block provided.
4. All time entries in this logbook are to be in GMT.
5. All codes used in the completion of this logbook shall be taken from those printed in the accompanying lists.
6. All weights recorded in this logbook must be round (wet) weight in kilograms.
7. Original logbook sheets are to be submitted within 30 days after the end of each calendar month during which the vessel operates.
8. When recording species which are not preprinted in the allotted blocks, code numbers taken from the list provided must be used and species names recorded in English or French.
9. All entries made in the “Remarks” block shall be in English or French.
10. A separate page is to be used for each day. Each day will commence at 0001GMT and will end at 2400 GMT.
11. A log sheet must be completed for each day. If no fishing took place, the reason for not fishing must be entered in blocks number 12 and 13.
12. The information for each tow is to be recorded on a separate line. If a vessel has more than seven tows in one day, the additional tows shall be entered on the following page and both pages shall be signed by the Master.

6.3.3  Required Information

There are four (4) parts to the International Fishing Log. Part I is the basic information. The required information here is straightforward and includes:

Part II of this logbook is the effort information. Again, this part is basically straightforward and includes the following information:

Part III of this logbook is the catch information and includes the following:

Block No's 40–43 are required to reflect the quantity and species composition of each individual tow. When catches are small it is possible to first process the fish before recording any figures. With large catches, an overlap between sets may occur and on deck estimation then becomes crucial. In this case, by insisting on estimates for blocks 40–41, recorded at the time of capture, a captain will have committed himself to the quantity and species composition of the tow. This will be helpful to the observer who will have an immediate idea of what the captain saw. Any major discrepancies or oversights can be dealt with on the spot. Production figures will later confirm how the fish was processed and round weight converted figures (blocks 51–53) can be compared to the estimates.

It should be emphasized that observer's and captain's estimates must be independent of each other. The observer is not to tell the captain what to enter in blocks 40–43. If required, however, the observer should advise the captain at least once during the trip that he is not recording representative quantities or species composition of the catch. Likewise it may appear that the captain is recording greater amounts of non-regulated species in order to cover up excesses in regulated species. In either case, once the observer has apprised the captain of the situation and no improvement is evident, he should then notify his own superiors who will deploy a fishery officer to further investigate the situation.

P0048–15

fig. 31

Part IV of the fishing log includes the following information:

The numbers entered in lines 51–53 are the single most important entries contained in all three logbooks and the ones that cause the most frequent problems. It is the quantity in line 53, reported to Canadian authorities via the weekly Catch and Effort Reports, that constitute the basic data for quota monitoring and by-catch calculations. Barring any significant discards (all foreign vessels are required to convert non-useable fish to meal when fishmeal plants are available), in which case they would have to be added, line 53 should represent an accurate figure of removals.

Line 53 need not match line 42 since production carry-over from fish caught the previous day or an unprocessed set from the end of the day, will create differences between these two figures. However, a close correlation should develop between these two sets of figures over time. It is the observer's task to determine the accuracy of line 58. He does this by comparing his own numbers with the captain's estimates, by making observations of production in the fish room and by analysis of the production log. Before explaining the methodology used to compare the production log with the fishing log, it would be beneficial to outline the format of the production log.

6.3.4  Production Logbook (fig. 29)

Section 11(f) of the “Coastal Fisheries Protection Regulations” define the regulatory powers that mandate the Production Logbook requirements.

“…where the processing of fish is authorized by the licence, the master of the vessel shall cause written records to be maintained on a daily basis of the processing operations carried out and of the species, quantity and the state of processing of the fish taken on board the vessel for that purpose.”

The production logbook is completed once daily, immediately after the end of the GMT day. It should only reflect what was produced between 0001 and 2400 GMT of the previous day. Product weight is the only measured point in a foreign vessel operation and therefore becomes the focal point for information pertaining to inspections, catch verification and quota control. This is the logbook that quantifies how much fish is on board the vessel.

6.3.5  Completion Instructions (Production Log)

The basic instructions for the production logbook are similar to those of the fishing logbook. Only the exceptions and those of particular importance are noted here.

1. All codes used in the completion of this logbook shall be taken from those printed in the accompanying list.
2. All weights entered in this logbook must be processed weight, in kilograms.
3. Original logbook sheets are to be submitted within 30 days after the end of each month during which the vessel operates.
4. When recording species which are not pre-printed in the allotted blocks, code numbers taken from the list provided must be used and species names recorded in English or French.
5. All entries made in the “Remarks” block shall be in English or French.
6. A separate page is to be used for each day. Each day will commence at 0001 GMT and will end at 2400 GMT.
7. A log sheet must be completed for each day. If no production took place, the reason why must be entered in the “Remarks” block.

6.3.6  Required Information

6.3.7  Production Log versus Line 53 of the Fishing Log

What is processed and recorded on a daily basis in the production log (processed weight) must be converted to round weight and tabulated on lines 51 and 52 of the fishing log to give a daily total round weight processed figure (line 53). While it is solely the captain's responsibility to ensure that this is done correctly, it is incumbent upon the observer to ensure on a routine basis that this is being done accurately and that the approved conversion factors are being utilized.

Line 51 records the “round weight produced today for human consumption”. This figure is obtained by taking the processed weights in the production log and multiplying them by conversion factors to get the round weight. A conversion factor is a numerical coefficient used to convert processed weight to round weight.

An example of this procedure is outlined. The production log shows the following information:

By applying the appropriate conversion factors, the round weight equivalency can be calculated.

Line 51 would then read 14,900 kg. of “round weight processed today for human consumption”. It is worthwhile noting that oil and meal produced from offal are not included in the calculation since these product forms are accounted for in the conversion factors 1.6 and 1.7.

Line 52 records the “round weight processed today for reduction”. Assuming a conversion factor of 5 for meal (produced from whole fish) to round weight, the following calculation would be made:

500 kg. (meal) × 5 = 2500 kg. round weight.

Line 52 would then read 2500 kg. and line 53 would be the total of 51 and 52, i.e. 17,400 kg.

This latter figure of 17,400 kg. would be reported for a particular species (not identified here) to Canadian authorities via the Catch and Effort Report. In one sense this method of operation can be regarded as an honour system whereby fisheries managers rely directly on the vessel captains to report truthfully what they have caught. From the Canadian experience it is correct to assume that Catch and Effort Reports from vessels with observers present are generally representative of what has been removed. Observer estimates confirm this. What has become apparent is that vessels without observers present do not report catches with the same accuracy and therefore, the catch reporting system does not function effectively without their presence.

6.3.8  Example of Comparing Observers' Estimates with Catch & Effort Reports

Foreign demersal fisheries are tightly controlled through by-catch limits for species which are exploited by domestic fishermen. Haddock is a prime example because it is limited to a 1% by-catch in order to protect juvenile stocks. Observers' estimates become very critical during fisheries that are intermixed with haddock since this species is often not reported by the fishermen. To illustrate this point a hypothetical situation will be described based on the experiences from previous years.

In the silver hake fishery, which commences mid-April, haddock by-catch does not become a concern until June and July. In 1984 when observer radio reports indicated that significant quantities of haddock were taken the week of June 4–10, a weekly comparison was initiated between observed vessels and non-observed vessels. During the week of July 9-15 twenty-five vessels were actively fishing, ten of which carried observers. Their catch reports were as follows:

From these figures it was apparent that although vessels with observers were reporting less haddock than the observers themselves, those vessels without observers were clearly negligent in fulfilling the requirement to accurately report what was being caught. All vessels were fishing in the same area at similar depths. This situation had persisted for the five previous weeks and despite consultation with the foreign fisheries representative, no improvements had been noted. An overview of these six weeks follows.

HADDOCK CATCHES

What these figures suggest is that before the Catch and Effort Reports are forwarded to the Department of Fisheries, they are manipulated to ensure an overall weekly fleet by-catch level of less than one percent. This is most blatant on the non-observed vessels where figures are reduced to counteract the more realistic levels reported by observed vessels. On the management side, to compensate for the juggling of haddock catch data, reported haddock figures are adjusted using the observers' catch rates for haddock as a percentage of total catch and applying this factor to the total weekly catch.

ADJUSTED HADDOCK CATCH

By regulation, haddock by-catch is to be calculated on an individual vessel basis and this is adhered to when a critical situation develops. For convenience sake, the haddock by-catch level is monitored on a fleet basis until the need arises to do otherwise. Therefore, the haddock by-catch as a percentage of total catch was calculated to be:

Based on the observed catch rates, the foreign nation is clearly in violation of the haddock regulatory requirement. However, at this point, particularly at the 1.3% level (with 76 tons over the 1% level and covering a six week period with twenty-five vessels), a judgement call was made. In this case a grace period was extended to allow for the figure to decrease. Should continued monitoring indicate that the level is increasing, then, as in previous years, the fishery would be closed.

Note: For an example of using observer catch data to counter misreporting in the tuna fishery, see Appendix C.

6.3.9  Transhipment Log (fig.3)

Section 11(e) of the “Coastal Fisheries Protection Regulations” defines the regulatory powers that mandate the Transhipment Logbook requirements:

“….where the transporting of fish from fishing grounds is authorized by the licence

(i) only the species and quantities of fish set out in the licence shall be taken on board the vessel for that purpose.

(ii) the fish may be taken on board only from vessels of a class set out in the licence, and

(iii) the master of the vessel shall cause written records to be maintained on a daily basis of the fish taken on board the vessel for transportation.”

During the course of a foreign fishery it frequently occurs that vessels tranship their frozen product onto refrigerated cargo vessels. The fishing vessel captain is required to maintain an accurate record of each such transfer. The format of the transhipment logbook is straightforward and follows the same rules that applied to the previous two logbooks.

Transhipments are an excellent opportunity for fishery officers, with the assistance of observers, to conduct inspections whereby a complete inventory of the processed product aboard the fishing vessel can be made and compared with what has been recorded in the log. The cumulative totals of the production log, by product type and species, minus the quantities listed as transhipped in the transhipment logbook should equal the amount remaining on the vessel. Similarly the converted round weight of the product transhipped plus the converted round weight of the product remaining on the vessel should equal the cumulative round weight of lines 53 from the fishing logbook. Any significant differences would constitute misreporting.

MASTER'S SIGNATURE 99                                    

CANADIAN FISHERY OFFICER'S SIGNATURE 100                                    

T 1574–09

fig. 32

6.4  Fishing Gear

Observers aboard fishing vessels must ensure that the fishing gear conforms to all licenced and regulatory requirements. There are six main areas of concern and the experienced observer is able to examine each of these. Trawl nets are continuously being modified to adapt to bottom conditions and to maximize catching ability. The observer must continually determine if these adaptations to the unit as a whole conform to the intent of the regulations. At each haulback, he has the opportunity to examine the net and ask himself whether the addition of strengthening straps, cod-end plugs or skirts, chafing patches, etc., have seriously impeded the ability of small fish to escape. When the answers are in the affirmative, he can first discuss his concerns with the captain and in most cases the issue is solved by the removal of the obstruction. If this is not the outcome then the assistance of an officer would be required.

6.4.1  Mesh Size

The majority of commercially exploited species are regulated by minimum mesh size standards and this is a cornerstone of management's attempt to control the fishing mortality of juvenile fish. In examining a net the single most important aspect is its mesh size. The definition and measurement of mesh size is the same for foreign and domestic vessels. Sections 11(3&4) of the Canadian “Foreign Vessel Fishing Regulations” and 10(3&4) of the “Atlantic Fishing Regulations” read as follows:

“For the purposes of this section, mesh size means

(a)  in respect of the cod-end of a net, the average of the measurements of any 20 consecutive meshes running parallel to the long axis of the cod-end, beginning at the after end of the cod-end, and at least 10 meshes from the lacings; and

(b)  in respect of any part of a net other than the cod-end, the average of the measurements of any 20 consecutive meshes that are at least 10 meshes from the lacings.

The measurements referred to above shall be made by inserting into the meshes a flat wedge-shaped gauge having a taper of 2 cm. in 8 cm. and a thickness of 2.3 mm with a weight of 5 kg. attached.”

Only fisheries officers are authorized to officially measure a net and certify that the mesh size is legal. The onus is always on the captain of the vessel to ensure that the mesh size is correct. The observer, not equipped with the proper measuring tools, can only rely on his own judgement to determine if the mesh size appears to be legal. Should there be any doubt, he is obliged to call for the assistance of an officer.

6.4.2  Mesh Obstruction and Chafing Gear

Once the observer has determined that the mesh size appears to be legal, he will examine the net to see if any of the meshes are obstructed or their size diminished. In doing so, he is following sections 12(1&2) of the Canadian “Foreign Vessels Fishing Regulations” and 11 (1&2) of the “Atlantic Fishing Regulations” which both state that:

“(1) Subject to subsection (2), no person on board a vessel shall use any device by means of which the openings in the mesh in any part of the trawl net are obstructed or the size of the mesh is diminished.

(2) For the purpose of preventing wear and tear to a trawl net, a person may attach

(a) to the underside of the cod-end, hides, canvas, netting or any similar materials; and

(b) to the topside of the cod-end, a topside chafer described in Schedule V.”

Subsection 2(1) of this regulation refers to the bottom chafer attached to the cod-end and there are no restrictions as to how it is constructed or what impact it has on the meshes. For the remainder of the trawl net, all meshes must be free to allow escapement. Practices such as using cod-end liners or placing floats inside the cod-end to increase buoyancy are not permitted. Policy now dictates that strengthening straps perpendicular to the long axis must be spaced a minimum of 1 m apart. This is a compromise recognizing that without them the cod-end could burst open when full of fish, but that spacing them any closer would impede the meshes from opening.

Three types of topside chafers are permitted. The “ICNAF Top Side Chafer” is the most commonly used. The observer is called upon to make sure that these are attached according to the regulations.

Authorized Topside Chafers (Schedule V)

1. ICNAF-type Topside Chafer (Standard and Modified)

   A rectangular piece of netting that

   (a)  is at least one and one-half times the width of the area of the cod-end that is covered, the width being measured at right angles to the long axis of the cod-end;

   (b)  has a mesh size that, being the average of the measurements of 20 consecutive meshes across the netting, is not less than the legal mesh size; and

   (c)  is fastened to the cod-end only along forward and lateral edges of the netting in a manner that will permit it to extend,

   (i)  where a splitting strap is used, over not more than that part of the cod-end between the fourth mesh forward of the splitting strap and the fourth mesh from the cod line mesh, and

   (ii)  where a splitting strap is not used, over not more than one-third of the cod-end measured from not closer than four meshes in front of the cod line mesh

2. Modified Polish Topside Chafer

   A rectangular piece of netting that

   (a)  is attached to the rear portion of the topside of the cod-end of a trawl net;

   (b)  is fastened to the cod-end along the forward, lateral and rear edges of the netting in a manner that will cause each mesh to exactly overlie four meshes of the cod-end over which it extends;

   (c)  is made of twine of the same material and size as that of the cod-end or of any single, thick, knotless twine material; and

   (d)  has a mesh size that is twice as large as the mesh size of the cod-end.

3. Multiple Flap-type Topside Chafer

   A series of pieces of netting, not exceeding two-thirds of the length of the cod-end in aggregate length, where each such piece

   (a)  is attached to the topside of the cod-end so that it overlaps the piece of netting immediately to its rear, if any;

   (b)  has a mesh size that is not less than the mesh size of the cod-end;

   (c)  is at least as wide as the cod-end, the width being measured at right angles to the cod-end;

   (d)  is not more than 10 meshes long; and

   (e)  is fastened by its forward edge only across the cod-end at right angles to its long axis.

NOTE: In fisheries where there are no mesh size restrictions i.e. capelin, there are no limitations on the configuration of the net.

6.4.3  Licenced Gear and Stowage

Foreign fishing vessels which transit or steam to port within the Canadian 200 mile zone must have all their fishing gear properly stowed. Only those vessels that have their licence aboard and are in an approved fishing area may have their gear ready for use. Two sections of the “Coastal Fisheries Protection Regulations” apply.

Section 9(2)

“….(2) Where a licence has been issued but not delivered, the foreign fishing vessel described in the licence may enter Canadian fisheries waters and proceed directly to a Canadian port for the purpose of obtaining its licence if all fishing gear on board the vessel is stowed below deck or otherwise removed from the place where it is normally used for fishing and placed where it is not readily available for fishing;” and

Section 11(k)

“…. where the vessel is in an area of Canadian fisheries waters and is not authorized by its licence to engage in fishing at that time in that area, all fishing gear on board the vessel shall be stowed below deck or otherwise removed from the place where it is normally used for fishing and placed where it is not readily available for fishing.”

When an observer is aboard a vessel that wishes to transit from one authorized fishing area to another, or to make a port call, he is to ensure that the captain complies with these regulations. All otter trawl doors must be disconnected and stowed on deck, towing warps must be detached from the trawl, and all nets must be covered and lashed. Furthermore, while fishing, the observer must verify that only the type of gear sanctioned by the licence (i.e. bottom otter trawl, midwater otter trawl, pelagic longline, etc.) is being used.

Section 11(d)

“…. the crew of the vessel shall fish only by means of fishing equipment and gear of a kind set out in the licence.”

6.4.4  Dual Gear

While the standard mesh size for domestic mobile gear is 130 mm, certain species are not regulated by mesh size and any size is permitted. In this group, redfish is the most commonly exploited by local fishermen. When directing for redfish a vessel may have both large and small (130 mm and smaller) mesh gear aboard but all species regulated by a 130 mm mesh size are restricted to a 10% by-catch level. A vessel may not have small mesh gear on board when directing for a species regulated by 130 mm mesh size. This is to prevent the “accidental” catching of stocks regulated by mesh size through the use of small mesh gear. Section 23 of the Canadian “Atlantic Fishing Regulations” is the relevant regulation:

“No person shall use a vessel to fish for any species of fish in division 4VWX that is set out in Column II of Schedule IV while he has onboard his vessel an otter trawl or portion of an otter trawl with a mesh size less than that specified in column III of Schedule IV for that net.”

6.4.5  Avoidance of Set Gear

This item falls somewhat outside the scope of what has been discussed so far in that it does not relate to the gear being used by the vessel itself, but rather to avoid gear set by other vessels. Both foreign and domestic fishing vessels with mobile gear are required to remain at least 1/2 nautical mile from any set or fixed gear. Since the foreign and domestic regulations are essentially the same, only Section 33 of the “Foreign Fishing Vessel Regulations” will be quoted here.

“….1. The master of a foreign fishing vessel in Canadian fisheries waters shall ensure at all times that there is maintained a distance of at least 1/2 nautical mile between his vessel and any equipment and gear attached thereto and any set fishing gear that has been marked so as to be visible to persons onboard vessels navigating in the vicinity.

……2. For the purposes of this section, “set”, in respect of fishing gear means that the fishing gear has been placed in the sea in such manner that

(a) each end of the gear is anchored in the sea;

(b) one end of the gear is anchored in the sea and the other end of the gear is attached to a fishing vessel;

(c) the gear is drifting in the sea; or

(d) one end of the gear is drifting free in the sea while the other end of the gear is attached to a fishing vessel.”

This is an important regulation since it is the only legislated authority the department has to prevent gear conflicts between the mobile and fixed gear sectors. Observers play a very important role, acting very often as the only objective third party witness to gear entanglements and their testimony has been highly valued in settling disputes. Not forgetting that the sole responsibility for maintaining the 1/2 nautical mile distance rests with the captain, observers nevertheless encourage them to maintain proper lookouts and exercise all reasonable precautions in avoiding gear conflicts with local fixed gear fishermen. Any degree of recklessness displayed by the captain would be reported immediately.

6.5  Incidental Catches

Incidental catch limits are formulated in response to two different needs. The first is for quota control purposes where the aim is to minimize the catch of one species in a multispecies fishery. For example, the mobile gear fleet of vessels less than 20 meters may have caught the majority of their haddock allocation but still have remaining large quantities of cod and pollock. In this case haddock would be placed on, say, a 20% by-catch. Foreign nations permitted access to the Canadian zone are given allocations to stocks that are surplus to present Canadian requirements. Vessels from these nations are licenced to direct for the surplus species. In order to reduce the impact on stocks prosecuted by the domestic fleet, strict incidental catch limits for other species have been established.

The second need for an incidental catch limit is when a “small” mesh size is being used for a species not regulated by mesh size. In this case any fish caught that are regulated by mesh size must be restricted to a by-catch rate of 10% or less. Almost all mobile gear demersal fisheries are regulated by a 130mm mesh size. Exceptions to this include the argentine, silver hake and squid fisheries where a 60mm mesh size is permitted, or redfish which has no mesh size restriction. In these cases rigid incidental catch limits are in effect in order to avoid the retention of juvenile fish of species that are regulated by larger mesh sizes.

Both the foreign and domestic incidental catch regulations will be explained and will serve to illustrate two approaches to monitoring by-catch.

6.5.1  Incidental Catch - Foreign

The rationale for allowing foreign fishing vessels access to the Canadian zone was explained in the preceding section and it follows therefore that any species for which that country does not have a quota must be limited to a by-catch. Section 9 of the “Foreign Vessel Fishing Regulations” outlines the requirements:

“….(1) No person shall take incidental catches exceeding the quantities described in this section and in section 10.

(2) Subject to section 10 and to any applicable licence issued pursuant to the Coastal Fisheries Protection Regulations, the incidental catch of any species of finfish taken in waters to which that Part applies by persons on board or operating from a foreign fishing vessel of a flag state for which there is no quota specifically applicable to that species in the area in which that incidental catch is taken shall not exceed, at any time during the course of any one fishing trip, the greater of

(a) 2,500 kg; and

(b) 10 per cent by weight of all fish the vessel caught in such waters.”

(Section 10, with essentially the same wording, places a 1% by-catch limit on haddock.)

Similar regulations in other areas of the world oceans, would have to be based on an evaulation of local conditions, remembering that in many tropical areas the “by-catch” makes up a significantly higher proportion of the catch and consists of considerably more species.

Schedule III (not included) of these regulations lists the required mesh sizes for all the regulated species, which in this case refers to species that are fished commercially. The use of smaller mesh sizes for other commercially exploited species is governed by Section 11 of the “Foreign Vessel Fishing Regulations”.

“….(1) Subject to subsection (2), no person shall, in a Subarea set out in column 1 of Schedule III, fish for or catch and retain fish of a regulated species set out in column II by means of a trawl net having a mesh size that is smaller than the size set out in column III.

(2) Subsection (1) does not apply to a foreign fishing vessel fishing for a species of fish that is not a regulated species in the Subarea in which the vessel is fishing if, the incidental catch of any species of fish that is a regulated species in that Subarea does not exceed, at any time during the course of any one fishing trip,

(i) with respect to incidental catches taken in the Convention area, the greater of

(a) 1,500 kg. and

(b) 10 per cent of all fish caught in that area, and

(ii) with respect to incidental catches taken in Division 4, the quantity set out in section 10.”

As an example of how this regulation applies, let us assume that a foreign nation has a redfish quota in subarea 4. There are no mesh size restrictions since this is not a regulated species (as per schedule III). Therefore by-catch restrictions of any regulated species of fish would be up to a maximum of 10% of all fish caught during the fishing trip (section 11–2i) except haddock which would be limited to 1%. (Section 11-2ii). Note that haddock could be caught up to the 10% level if the nation had a quota for this species (Section 10).

The method of calculating by-catch levels is standard for all foreign vessels: a total catch of a single regulated species from a defined quota area, is taken as a percentage of all fish caught and retained in that quotas area, by that vessel, during the entire fishing trip be that one or twenty weeks (the duration of the fishing trip will correspond to the period of validity of the licence). For the vessel to comply with regulations, the by-catch level must not be exceeded at any time during the fishing trip.

6.5.2  Incidental Catch - Domestic

Canadian domestic fishing vessels operating on a competitive basis are governed by species quotas specific to quota areas and fishing gear sectors (e.g. cod-4T-Mobile Gear Vessels less than 30m). Many species make up the total allocation to a particular gear sector. When an individual species quota is exhausted before the others it becomes “prohibited” and subject to a by-catch limit of 10% or that percentage as ordered by the Regional Director-General.

Section 9 of the “Atlantic Fishery Regulations” defines the authority to do this.

“…. Where fishing for a species of fish is prohibited in an area pursuant to these Regulations, a person fishing therein for a species of fish other than a species of fish to which the prohibition applies may catch and retain during any one fishing trip a fishing quota of that prohibited species if the quota so caught and retained does not exceed 10 per cent or that percentage as varied under section 7 of the total weight of all fish on board that person's vessel and taken in that area that are not prohibited. (Section 7. “A Regional Director-General may, by order, vary any close time or fishing quota set out in these Regulations.”)”

Two changes from the foreign regulations are apparent here. First, foreign vessels' by-catch levels must not be exceeded “at any time”, whereas domestic vessel by-catch levels are calculated over “one fishing trip”, with trips averaging ten days. This allows the captain to “fish himself out of trouble” should he have exceeded the by-catch levels in the initial stages of his trip.

Secondly, the method for calculating by-catch differs. In this case, it is the total catch of the prohibited species by quota area as a percentage of all the fish taken in the same quota area that is not prohibited, and not as a percentage of total catch. What applied to Schedule III for the “Foreign Vessel Fishing Regulations” regarding mesh size is valid as well for Schedule IV of the “Atlantic Fishery Regulations”. The incidental catch limit for a regulated species, when using “small mesh” gear, is 10% and this is explained in Section 10 of the regulations.

“….(1) Subject to subsection (2), no person on board a vessel in a subarea set out in column I of an item of Schedule IV shall fish for or take any species of fish set out in column II of that item by means of an otter trawl having a mesh size that is less than the size set out in column III of that item.

(2) Subsection (1) does not apply to a person on board a vessel fishing in a Subarea referred to in that subsection for a species of fish that is not a regulated species if the incidental catch of regulated species of fish taken in that Subarea does not exceed 10 per cent by weight of all fish on board that vessel that is not a regulated species and that was caught in that subarea.”

By-catch level calculations for regulated species are completed in the same manner as those for prohibited species, i.e. as a percentage of all fish that is not regulated.

6.6  Closed Areas and Seasons

All offshore commercial fisheries within the Canadian zone are regulated by quota areas (that correspond to NAFO subdivisions) and by seasons. As well, specific foreign fisheries (capelin, squid, silver hake) are restricted to clearly delineated “windows” in order to avoid gear conflicts with other fishing sectors and to minimize by-catches of non-licenced species. For conservation purposes, domestic fishermen are prohibited from fishing in distinct areas for certain periods of the year.

Many of the applicable regulations are germaine only to Canada and so only the empowering legislation to set closed times and areas will be described. The first basic piece of legislation is section 51(3) of the “Fisheries Act” which restricts any fishing by vessels greater than 19.6 m (65 ft.) to twelve miles or more from the coastline.

“….No vessel shall carry on fishing operations from or to any Canadian port or ports, unless it restricts its fishing operations to waters that are at least twelve miles distant from the nearest shore on the Atlantic seacoast of Canada or to fisheries that are such greater distances from that shore as may be prescribed under subsection (6) and the proof that such fishing operations are so restricted at all times lies on the captain of the vessel, but this subsection does not apply to small draggers (vessels less than 19.6 m) operated by inshore fishermen….” and

“….either generally or in respect of any specific waters, distances greater than twelve miles from the nearest shore on the Atlantic seacoast of Canada.”

The legislation enables the minister or his designate to define fishing areas off the seacoast of Atlantic Canada, be that a particular area for silver hake fishing or a conservation area for spawning haddock. These areas are well defined within the regulations and no vessel, whether foreign or domestic may fish there during specified periods of the year. Section 15 of both the “Foreign Vessel Fishing Regulations” and the “Atlantic Fishing Regulations” are similar and refer to those areas where fishing is prohibited for either the whole year or any part thereof.

FVFR Section 15 “No person shall fish in any part as described in Column I as an item of Schedule V during time set out in Column II of that item.”

AFR Section 15 “No person shall fish by means of an otter trawl in waters set out in column I of an item of Schedule from a vessel of a length set out in Column II of that item during the period set out in column III of that item.”

The Regulations define the closure times for the different domestic and foreign fisheries. In all cases the Regional Director-General may vary the time set out in these Regulations to respond to the dynamics of the fisheries.

Fishing during closed seasons or outside the period of validation of the licence is seldom a problem that involves the observer. This may be because it is too blatant and the captain knows that with the observer present, the likelihood of being caught is very high.

Fishing within closed areas is more common because detection is dependent upon the observer's navigational skills and his diligence in remaining current on the vessel's movement and position. Fishing captains often fish along the edges of closed areas and dart across when they perceive that the observer is preoccupied with other duties. It is the observer's business to anticipate these occurrences and to maintain a routine that does not become predictable to the captain.

6.7  Safety and Assistance to Observers

The well-being of observers aboard foreign vessels is covered by Section 11 of the “Coastal Fisheries Protection Regulations” to ensure that they are able to perform their duties and carry out their mandate as representatives of the Government of Canada in a safe and reasonably comfortable manner, free from hindrance. Analogous legislation exists for domestic vessels. The master of a vessel is responsible to the observer in five specific areas.

6.7.1  Accommodating Observer and Removal of Records and Samples

When requested, the master of a vessel is to allow an observer aboard for a designated period, permit him to carry out his duties of collecting information and samples and allow him to remove these at the termination of the observer's stay.

“Section 11(n). The master of the vessel shall, where feasible and when requested by the Regional Director-General or a person designated by him, permit observers to go on board and remain on board the vessel, at a time and for a period specified in the request, for the purpose of recording scientific data and observations or taking samples, and shall permit them to retain and remove from the vessel any samples and records they have taken or compiled.”

6.7.2  Safety

The master is responsible for the observer's safety, particularly during transfers at sea.

“Section 11(o). The master of the vessel shall take all reasonable precautions to ensure the safety of any protection officer or observer boarding or leaving the vessel at sea including the observance of practices of good seamanship and, where necessary, the placing of a pilot ladder over the side of the vessel.”

6.7.3  Food and Accommodation

Observers are to be provided with suitable food and accommodation while on board the vessel.

“Section 11(p). Where a protection officer or an observer is on board the vessel and remains on board the vessel for a period of more than four hours, the master of the vessel shall provide the protection officer or observer with suitable food and accommodation if such is available on board the vessel.”

6.7.4  Communication

The observer is required on a regular basis to communicate “situation reports” to headquarters outlining the vessel's activity and catch. He may also want to discuss issues with fellow observers on neighbouring vessels, if only to hear a familiar voice. In either case, he must be granted access to radio equipment provided it does not endanger the vessel.

“Section 11(q). The master of the vessel shall, (i) at the request of a protection officer or an observer, arrange for that officer or observer to send or receive messages by means of radiotelegraph or radiotelephone facilities on board the vessel.”

6.7.5  Assistance

In carrying out his work, the observer performs a myriad of tasks, many of which are physically demanding, require special information, or someone's assistance. While the observer should seek this only through polite and diplomatic means the master is nevertheless obligated to help him where reasonably possible.

“Section 11(q). The master of the vessel shall, (ii) provide all reasonable assistance in his power to enable a protection officer or an observer to carry out his duties and functions.”

Failure to meet up to the aforementioned five areas of responsibility could lead to an unpleasant trip for the observer. It is unlikely that any substantive legal action could be taken beyond a reprimand from an officer and a warning in the licence. However, it is an axiom of this type of work that when an observer has these types of problems, it is likely that other more serious problems, such as misreporting, exist and then it becomes incumbent upon the observer to find them, document them and report them to a fishery officer for action. The converse, that if all is comfortable, all is well, is not necessarily true. Excessive hospitality is something the observer should always be on guard for.

6.8  Dumping & Prohibited Species

Discarding of fish, either because of small size, damage or low economic value, has been defined as the selective culling of non-useable fish, and is tolerated on domestic and foreign vessels provided that a fish meal plant is not available. The indiscriminate dumping of significant quantities of fish is not permitted and is considered a violation. For foreign vessels, Section 36 of the “Foreign Vessel Fishing Regulations” refers to Schedule I as listing the species that may not be dumped. Included are all the commercially valued finfish species and the efforts of enforcement and conservation are focused on these.

“Section 36(f). No person shall dump or permit to be dumped from a foreign fishing vessel any fish of a species or group of species set out in Schedule I except fish of the species set out in the licence issued pursuant to the “Coastal Fisheries Protection Regulations.”

The exception to this rule is outlined in the “Coastal Fisheries Protection Regulations”, whereby prohibited species as defined in the licence, must be returned to the water. In the Canadian situation these include salmon, crustaceans and marine mammals.

“Section 11(d)ii. The crew of the vessel shall not catch and retain any fish of a species, size or age set out in the licence as prohibited catches, and where such fish are caught they shall be returned to the water, alive if possible.”

Domestic regulations invoke the same regulatory requirements. Section 28 of the “Atlantic Fishing Regulations” reads as follows:

“Section 28. No person shall dump or permit to be dumped from a fishing vessel fish of any species, set out in Column I of an item of Schedule III.”

Again, Schedule III lists all the commercially valued finfish species. Species for which special licences are required, such as lobsters or scallops, must be returned to the water.

The observer is in a difficult position in relation to discarding. The complete emptying of a cod-end full of fish is a simple case and requires little consideration. However, determining when discarding becomes dumping is not as easy. Discarding-dumping can post a serious threat to the fishery, both in the removal of juvenile fish and in terms of unreported catch. While it is a regulatory requirement to record discards, values are generally not representative and are considerably lower than observer estimates. The observer is trained to monitor production carefully and to monitor discards whenever possible. His estimates are prorated against the catch to determine the size of the discard-dumping problem. Only in a few cases has indiscriminate dumping been observed and legal action taken.